USA v. Baker

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA 	CRIMINAL ACTION
VERSUS 	NO. 24-99
SCHARMAINE LAWSON BAKER 	SECTION “R” (1)
ORDER AND REASONS
Before the Court is defendant Scharmaine Lawson Baker’s motion for
acquittal or, in the alternative, a new trial. 1 	The government opposes the
motion. 2 The Court denies Baker’s motion for the reasons below.
I. 	BACKGROUND
On April 25, 2024, the Government filed an indictment charging
Scharmaine Lawson Baker with six counts of health care fraud, in violation
of 18 U.S.C. §§ 1347 and 2. 3 	After a three-day trial, the jury returned its
verdict, finding Baker guilty as to all counts.
Following her conviction, Baker moved for judgment of acquittal or
alternatively a new trial. Baker’s motion asserts that the evidence presented
at trial was insufficient to satisfy all of the elements of health care fraud for
1 	R. Doc. 75.
2 	R. Doc. 79.
3 	R. Doc. 1.
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the six counts of which she was convicted. Specifically, Baker contends that
the government failed to present sufficient evidence that she acted with the
requisite intent to commit health care fraud. Baker additionally argues that
the government improperly solicited opinion testimony from Special Agent
Gagliano. The government opposes Baker’s motion. The Court considers the
parties arguments below.
II. 	LEGAL STANDARD
a. Motion for Judgment of Acquittal
Federal Rule of Criminal Procedure 29(a) provides that “[a]fter the
government closes its evidence or after the close of all the evidence, the court
on the defendant’s motion must enter a judgment of acquittal of any offense
for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim.
P. 29(a). “A defendant may move for a judgment of acquittal, or renew such
a motion, within 14 days after a guilty verdict or after the court discharges
the jury, whichever is later.” Fed. R. Crim. P. 29(c).
A motion for judgment of acquittal under Rule 29 challenges “the
sufficiency of the evidence to sustain a conviction.” United States v. Uvalle-
Patricio, 478 F.3d 699, 701 (5th Cir. 2007). “When the defendant challenges
the sufficiency of the evidence, ‘the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any
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rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). The same test applies whether the government’s case depends
on direct or entirely circumstantial evidence. United States v. Thomas, 627
F.3d 146, 151 (5th Cir. 2010) (citing United States v. Clayton, 506 F.3d 405,
412 (5th Cir. 2007)).
The court’s job is to determine “whether the jury made a ‘rational
decision,’ not ‘whether the jury correctly determined guilt or innocence.’”
United States v. Zamora-Salazar, 860 F.3d 826, 832 (5th Cir. 2017). 	The
reviewing 	court 	does 	not 	weigh 	the 	evidence 	or 	make 	credibility
determinations. See id. A review of the sufficiency of the evidence is “highly
deferential” to the jury’s verdict. 	United States v. Isgar, 739 F.3d 829, 835
(5th Cir. 2014). A verdict must be upheld “[i]f the jury was presented with
sufficient evidence to support its verdict.” 	Zamora-Salazar, 860 F.3d at
832.
b. Motion for New Trial
Federal Rule of Criminal Procedure 33(a) provides that “[u]pon the
defendant’s motion, the court may vacate any judgment and grant a new trial
if the interests of justice so require.’” 	Fed. R. Crim. P. 33(a). 	“Any motion
for a new trial grounded on any reason other than newly discovered evidence
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must be filed within 14 days after the verdict or finding of guilty.” 	Fed. R.
Crim. P. 33(b)(2).
Rule 33 is exercised in two situations. United States v. Crittenden, 46
F.4th 292, 296 (5th Cir. 2022) (citing United States v. Hoffman, 901 F.3d
523, 552 (5th Cir. 2018)). 	One is “when error infects the trial.” 	Id. (citing
Hoffman, 901 F.3d at 552). 	“The other is when the court believes the
evidence weighs ‘heavily against the verdict.’” Id.
In determining whether the evidence weighs “heavily against the
verdict,” Crittenden, 46 F.4th at 296, the court may “weigh the evidence and
may assess the credibility of the witnesses.” 	United States v. Ramos-
Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). This differs from the Rule 29
context, where the court must view the evidence in the light most favorable
to the prosecution. Nonetheless, “the judge cannot entirely usurp the jury’s
function and set aside the verdict merely because the court would have ruled
the other way.” Crittenden, 46 F.4th at 297.
Motions for new trial are disfavored. United States v. McRae, 795 F.3d
471, 478 (5th Cir. 2015); see also United States v. Meyer, 63 F.4th 1024, 1039
(5th Cir. 2023) (emphasizing that “[o]rdering a new trial is no small matter”).
For a court to order a new trial, thereby disturbing a jury’s verdict, “the
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evidence must preponderate heavily against the verdict, such that it would
be a miscarriage of justice to let the verdict stand.” Meyer, 63 F.4th at 1039.
c. Elements of Health Care Fraud
To prove health care fraud in violation of 18 U.S.C. § 1347, the
government must prove the following elements beyond a reasonable doubt:
“the defendant knowingly and willfully executed, or attempted to execute, a
scheme or artifice—(1) to defraud any health care benefit program or (2) to
obtain, 	by 	means 	of 	false 	or 	fraudulent 	pretenses, 	representation, 	or
promises, any of the money or property owned by, or under the custody or
control of, any health care benefit program, in connection with the delivery
of or payment for health care benefits, items, or services.” 	United States v.
Willett, 751 F.3d 335, 339 (5th Cir. 2014) (cleaned up).
III. 	ANALYSIS
a. Evidence Presented at Trial
The government charged Baker with executing a scheme and artifice to
defraud Medicare by submitting and causing to be submitted approximately
$12.1 million in false and fraudulent claims to Medicare for medically
unnecessary cancer genetic (“CGx”) tests for which Medicare reimbursed
approximately $1.5 million. 4 	During the trial the government presented
4 	See R. Doc. 2.
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voluminous 	evidence 	that 	Baker 	contracted 	with 	Bronson 	Medical, 	a
purported 	telemedicine 	company, 	to 	write 	prescriptions 	for 	medically
unnecessary CGx tests that were billed to Medicare and for which she was
paid a fee for each prescription she wrote. 	The evidence included audio
recordings of Baker’s seconds-long “consultations,” Baker’s “patient notes,”
which were replete with errors and falsities, testimony from multiple
witnesses 	including 	expert 	testimony, 	Baker’s 	Medicare 	enrollment
documents in which she agreed to abide by the Medicare Rules and
Regulations, 	Baker’s 	own 	books 	in 	which 	she 	held 	herself 	out 	to 	be
knowledgeable on Medicare and telehealth, and evidence that Baker caused
Medicare to be billed approximately $12 million for these tests. 5 An overview
of the evidence follows.
The government called Andrew McCubbins, the former chief executive
officer of Bronson Medical who testified that Bronson relied upon providers
like Baker to write orders to bill to Medicare. 6 	Take, for instance, the
following exchange between the government and McCubbins:
Q. Sure. 	Could you have signed the orders for those cancer
genetic tests, Mr. McCubbins?
A. No.
Q. Could one of your employees at the call center have signed
those orders?
5 	See generally R. Docs. 80-83 (Trial Transcripts Days 1-3).
6 	R. Doc. 80 (Trial Transcript Day 1) at 29, 37-38.
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A. No.
Q. Did you need the provider in order to get orders signed for
products such as cancer genetic testing?
A. Yes.
Q. Who required that providers sign those orders?
A. The insurance companies.
Q. Was Medicare included in that?
A. Yes.
Q. Would insurance companies pay for the service that were
ordered by someone other than a medical provider?
A. No. 7
The government also called Shauna Schwarm, a contractor with the
Center for Medicare & Medicaid Services to investigate fraud, waste, and
abuse, who testified regarding Medicare requirements and the “red flags”
present in Baker’s orders. Schwarm testified that Medicare requires services
to be “medically necessary” to be reimbursable. 8 	She further testified that
providers 	must 	apply 	for 	a 	National 	Provider 	Identifier 	and 	fill 	out
enrollment 	paperwork, 	which 	requires 	providers 	to 	make 	certain
certifications in order to enroll with Medicare (a necessary predicate to
billing Medicare). 9 Notably, she testified that a provider must “agree to abide
by 	the 	rules 	and 	regulations 	of 	Medicare” 	in 	order 	to 	enroll. 10 	The
7 	Id. at 37-38.
8 	R. Doc. 81 (Trial Transcript Day 2) at 17.
9 	Id. at 17-18.
10 	Id. at 18.
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government additionally introduced Baker’s signed enrollment application,
which included a certification, which states:
I agree to abide by the Medicare laws, regulations, and program
instructions that apply to me. 	The Medicare laws, regulations,
and program instructions are available through the Medicare
contractor. I understand that payment of a claim by Medicare is
conditioned upon the claim and the underlying transaction
complying with such laws, regulations, and program instructions
(including, but not limited to, the federal anti-kickback statute
and the Stark law) and on my compliance with any applicable
conditions of participation in Medicare. 11
The 	jury 	also 	saw 	another 	certification 	within 	Baker’s 	enrollment
application, which certified that she would “not knowingly present or cause
to be presented a false or fraudulent claim for payment by Medicare and will
not submit claims with deliberate ignorance or reckless disregard of their
truth or falsity.” 12
The 	government 	showed 	the 	jury 	relevant 	Medicare 	rules 	and
regulations, which include that Medicare payments “may not be made for
services that are not reasonable and necessary,” and that clinical laboratory
services “must be ordered and used promptly by the physician who is treating
the 	beneficiary 	as 	described 	in 	42 	C.F.R. 	§ 	410.32(a) 	or 	a 	qualified
nonphysician practitioner as described in 42 C.F.R. § 410.32(a)(3).”13 	And
11 	Id. at 21.
12 	Id. at 23.
13 	Id. at 30.
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the jury heard from Schwarm regarding medical necessity of CGx tests,
including that “if the patient doesn’t have cancer and is not seeking treatment
for that cancer, then [CGx testing] is not [medically] necessary,” and thus
Medicare would not pay for that testing. 14
Schwarm further testified that $12,181,983 was billed to Medicare for
CGx testing ordered by Baker, and that Medicare paid $1,500,271.21 on those
orders. 15 Schwarm testified that there were 206 Medicare beneficiaries billed
to Medicare for CGx testing ordered by Baker, and that a review of claims
data showed that “[t]here were no kinds of services billed prior to the
ordering 	of 	the 	testing,” 	indicating 	that 	Baker 	had 	no 	pre-existing
relationship with these Medicare beneficiaries. 16 When asked directly if “the
only interaction that [Baker] had with th[e] patient[s] was ordering th[e]
$34,000 test,” Schwarm responded “yes.” 17
The government introduced additional evidence that Baker had no pre-
existing relationship with the six beneficiaries identified in the Indictment,
did not examine or treat them, and provided no follow-up after ordering the
CGx testing. 18 The audio recordings of the 72, 39, 40, 44, 46, and 52-second
14 	Id. at 34-35.
15 	Id. at 55-56.
16 	Id. at 56.
17 	Id.
18 	Government Exhibits 100-23; R. Doc. 81 at 3-13, 67-103.
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“consultations” were played for the jury, 19 	Baker’s internal notes were
displayed, and the jury saw that Baker billed the same 19 codes for each
beneficiary.20 	The beneficiary or a health care provider for the beneficiary
testified at trial confirming the lack of any pre-existing relationship with
Baker and the lack of follow-up from Baker regarding the test results. 21 The
jury additionally heard about the falsities within Baker’s “patient notes.” 22
As an example, J.B., a 63 year old male, testified that the 39-second
phone call with Baker was “pretty much” the entirety of his interaction with
her. 23 	The jury heard Baker ask how J.B. “how are you doing” and then
immediately informed him that she’d like to get him “set up to receive a
cancer screening kit in the mail” without asking any other questions. 24 	J.B.
also said he was unaware of any effort to contact him with the results of the
test. 25 The jury saw Baker’s “patient notes,” which indicated that J.B. had a
history of breast (including cancer in the areola of the left female breast),
19 	Government Exhibits 102, 106, 110, 114, 118, 122.
20 	Government Exhibits 100-123, 804-09.
21 	See, e.g., R. Doc. 81 at 72-76.
22 	See, e.g., id.
23 	Id.
24 	Government Exhibit 106. This phone call was emblematic of the others
the jury heard for the six beneficiaries named in the Indictment.
Government Exhibits 102, 110, 114, 118, 122.
25 	R. Doc. 81 at 72-76.
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cervical, and pancreatic cancer, 26 which was false as J.B. testified that, at the
time of the phone call with Baker, he did not have a personal history of those
cancers.27 	Significantly, Baker’s entries for cancer in the areola of the left
female breast and cervical cancer on a male were facially false.
The government’s expert witness, Dr. Anthony Magliocco, testified at
length about CGx testing generally and the CGx testing ordered by the
defendant. He opined that none of the CGx tests ordered by the defendant
was medically necessary. 28 He also testified that a provider who orders a CGx
test for a patient should have an established relationship with that patient
and should be responsible for the result of the test ordered. 29 	He further
testified that there would be “no value” if a patient did not receive his or her
results. 30 He testified that CGx testing is not cancer screening and does not
tell someone if they actively have cancer. 31 Dr. Magliocco explained medical
necessity in the context of CGx testing as follows:
Q. For what categories of patients is cancer genetic testing
medically necessary?
A. Yes. It's medically necessary in a group of patients where it will
impact care. Generally, that's the definition of medical necessity,
that you need to know the information because you are going to
26 	Government Exhibit 105.
27 	R. Doc. 81 at 75-76.
28 	Id. at 135-227.
29 	Id. at 144-145.
30 	Id. at 168.
31 	Id. at 151-54.
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change your care. So that means I'm going to do this test because
I'm going to change the surgery that I do. I'm going to do this test
because 	I'm 	going 	to 	change 	the 	frequency 	of 	the 	cancer
screening . . . . Or I really need to know this information to select
a new type of drug that only works if you have an inherited
mutation in a gene called BRCA1. Those are instances of medical
necessity, where you need that information to say I'm going to do
this or that, this or that. And so that's where it becomes medically
necessary and where a payer would say, yes, that's medically
necessary, that's appropriate for this patient. 32
He also explained that these tests are medically necessary for less
than one percent of patients, and medically necessary for significantly
under one percent of the Medicare population:
Q. What percentage of patients actually need cancer genetic
testing?
A. It's actually -- if you are going to use that medical necessity,
it's a fairly small number . . . . So I would estimate it's probably
under one percent, significantly under one percent.
Q. What about the Medicare population, what percentage?
A. I think it would be very unlikely in that population. That's a
population of above 65, more elderly people. They are already on
standard care. In that population, you generally only use the test
if you are going to be selecting them for a particular type of
therapy. In that group, I would expect it to be a relatively smaller
number. I think it would be under one percent. I don't know the
exact number personally. 33
Dr. Magliocco repeatedly testified that a provider could not decide to
order a CGx test in the matter of seconds that Baker spent on the phone with
the Medicare beneficiaries. 	Further, he stated that his review of Baker’s
32 	Id. at 148-50.
33 	Id.
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Bronson patient files and associated CGx test orders revealed that files were
formulaic, 	had 	consistent 	errors, 	lacked 	signed 	consent 	forms, 	and
mislabeled the tests as cancer screenings. 34
Dr. Magliocco also opined that all of Baker’s CGx test orders that he
reviewed were medically unnecessary:
Q. We have reviewed the cancer genetic requisition forms, we
have reviewed the audio recordings, we have reviewed the
patient notes, and we reviewed the results for all six Medicare
beneficiaries in the indictment. If that was all the information
that you had on these six patients, would that be enough to make
a determination whether to order a cancer genetic test?
A. 	In 	my 	opinion, 	no. 	This 	is 	insufficient 	to 	make 	that
determination.
…
Q. 	In 	addition 	to 	the 	patient 	files 	for 	the 	six 	Medicare
beneficiaries that you reviewed, did you review any other files?
A. Yes. I was provided with a substantial number of files.
Q. How many would you say?
A. I think it was over a hundred, maybe 109 or something in that
range.
Q. Did you review these files from March of 2019?
A. Yes.
Q. Have you ever ordered 100 cancer genetic tests in one week?
A. No. No.
Q. After reviewing these additional patient files, were any of the
cancer genetic tests for those patients medically necessary?
A. I went through as many as I could – many, many – and they
were all very similar to the ones that we reviewed today. In my
opinion, I couldn't find even one that was medically necessary.
Q. Final question: In your opinion, in all of the patient files that
you have reviewed, was there a single one where cancer genetic
testing was medically necessary?
34 	Id. at 168-69.
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A. There wasn't a single one that the evidence supported the
necessity for cancer genetic testing. 35
As discussed below, the government also introduced evidence that
Baker attempted to conceal her involvement with Bronson. 	The evidence
showed that in order to work for Bronson, Baker required a supervising
physician, and that Baker entered into a collaborative agreement with Dr.
Anil Prasad to satisfy that requirement. 36 The jury heard from Special Agent
Gagliano that Baker did not file the collaborative agreement with Dr. Prasad
with 	the 	Louisiana 	State 	Board 	of 	Nursing, 	while 	Baker 	filed 	other
collaborative agreements during the same time period that she was providing
“consultations” for Bronson. 37
Special Agent Gagliano also testified that Baker failed to list her
Bronson income in her 2019 bankruptcy filings. Specifically, she testified as
follows:
Q. Did you do any public record searches that revealed evidence
related 	to 	her 	concealing 	her 	involvement 	in 	the 	Bronson
scheme?
A. Yes.
Q. What did you find?
A. A bankruptcy from 2019 where Bronson was not reported as
an income source. Any time you file for bankruptcy, you have to
list all your sources of income.
…
35 	Id. at 224, 226-27.
36 	Government Exhibit 403.
37 	R. Doc. 82 at 94-96.
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Q. Did you find anywhere in this filing about her income anything
about the money she had received from Bronson?
A. No.
…
Q. So she files this amended version of her income. Does she
include the Bronson payments in this amended filing of her
income with the bankruptcy court?
A. Not on this page, if we can go to the second page. And not on
the second page.
Q. So no mention of Bronson in the bankruptcy documents?
A. No. 38
The jury also heard an audio recording in which Medicare beneficiary
A.R. contacted Baker after her initial “consultation” to inform Baker that
A.R. had spoken to Medicare and reported Baker for fraud. 39 	The jury then
saw Baker’s email with Bronson asking that A.R.’s prescription not be filled
under Baker’s name. 40 The body of Baker’s email stated:
I’m not sure if the staff communicated to you that a patient
allegedly called Medicare on the company and me?? I had asked
that her particular RX not be filled under my name. Did you get
this message? 41
Special Agent Erin Gagliano additionally testified that Baker made
multiple false statements to the FBI. 	Take, for example, the following
testimony:
Q. Can you give the jurors a general overview of how that
interview went with the defendant.
38 	Id. at 90-94.
39 	Id. at 44-45; see also Government Exhibit 131.
40 	Id. at 46-47.
41 	Government Exhibit 409.
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A. Yes. So we interviewed her inside of her house, and she told us
that she had never worked for Bronson and that she didn't recall
getting paid by Bronson. She said that she didn't order cancer
genetic testing, and then at some point in the interview changed
her statement and said she may have submitted an application
for Bronson, but only worked there for a month or so.
…
Q. As a part of this line of questioning, did you ask the defendant
about her experience with cancer genetic testing or with cancer
patients generally?
A. Yes. She said that she didn't treat cancer patients and that she
doesn't order cancer genetic testing.
…
Q. 	… 	[D]id 	you 	confront 	the 	defendant 	about 	working 	for
Bronson Medical?
A. Yes. Uh-huh.
Q. How did she respond?
A. She stated that she didn't work there and she never got paid
by them. And then she stated that she may have submitted an
application for them, but she only worked there for about a
month or so.
Q. Did she talk about payments from Bronson at all during this
interview?
A. Yeah. She said that she never got paid by Bronson.
Q. Based on your investigation, did you believe those statements
to be truthful?
A. They were not truthful.
Q. What evidence did you have to the contrary?
A. We had bank records. We had records from Bronson Medical,
including the contract, all of her onboarding documents, emails
with 	the 	staff, 	direct 	deposit 	forms, 	the 	medical 	records
themselves, the recordings. 42
The government additionally introduced evidence that Baker held
herself out to be knowledgeable about Medicare requirements, telehealth
42 	R. Doc. 82 at 31-34.
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and billing. 	Specifically, the jury saw portions of books authored by the
defendant which covered those topics. 43 	For example, one book stated that
a “service/visit must be medically reasonable and necessary.” 44 	Special
Agent Gagliano testified on the relevance of the books as follows:
Q. How were the books useful to your investigation?
A. Well, because it shows -- you know, the books that we are
talking about deal with health care, and so some of them are for
nurses who want to the start their own business. And so, in these
books, 	there 	are 	statements 	about 	Medicare 	rules 	and
regulations[,] so it shows her knowledge of those rules and
regulations. There’s also discussions about billing. Again, that
shows her knowledge of that. And also with telemedicine, that
shows her knowledge of telemedicine and how it’s supposed to
work.45
The government showed the chain of payments following the CGx test
orders: first the lab running the CGx test submitted billing to Medicare; then
Medicare reimbursed the lab which in turn sent money to Bronson which in
turn disbursed a portion of the money to defendant. 46
Finally, 	on 	cross-examination 	Baker 	herself 	admitted 	that 	she
“agree[d] [to] comply with the federal antikickback laws,” “agreed … not [to]
present false or fraudulent claims to Medicare,” and “agree[d] to follow
43 	Government Exhibits 500-03.
44 	R. Doc. 82 at 70; see also Government Exhibit 500.
45 	R. Doc. 82 at 66.
46 	Id. at 27-28, 61-65.
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[Medicare’s] rules and regulations. 47 She was also shown evidence indicating
that she was being paid $20 per prescription written, not $20 per call
regardless of the outcome. 48 	She admitted that she did not meet the
Medicare beneficiaries in the indictment, did not bill for other services for
them, she did not look at the results of any of the CGx tests she ordered, and
never discussed the results with the beneficiaries. 49 	She further admitted
that she does not order CGx tests for her actual patients. 50 	Indeed, the jury
heard a recording of her telling a beneficiary that she would “usually send
[her own patients] to a specialist.” 51
b. Motion for Judgment of Acquittal
The government provided sufficient evidence such that the jury made
a “rational decision.” 	Zamora-Salazar, 860 F.3d at 832. 	The government
presented sufficient evidence for a rational jury to determine that the
government established beyond a reasonable doubt that Baker knowingly
and willfully committed six instances of health care fraud. 	Between the
government’s twelve witnesses and voluminous exhibits, there was more
47 	Id. at 151.
48 	See id. at 143-50.
49 	Id. at 153-58.
50 	See id. at 161.
51 	Government Exhibit 127.
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than enough evidence to support the jury’s verdict. 	The Court will not
disturb the jury’s rational decision.
As outlined in greater detail above, the jury saw and heard sufficient
evidence from which they could reasonably conclude that Baker played a
necessary part in the scheme to defraud Medicare and that Baker had the
necessary knowledge and intent to be found guilty of Medicare fraud.
i. 	Role in the Scheme
Andrew McCubbins, the former chief executive officer of Bronson
Medical, testified that Baker and other providers were essential to the
fraudulent scheme because they were necessary to order the CGx tests. 52 Cf.
United States v. May, 131 F.4th 633, 639 (8th Cir. 2025) (“Because [the
pharmacy] 	could 	not 	fill 	prescriptions 	without 	a 	medical 	provider’s
signature, an essential component of the scheme was medical providers
willing to participate.”). While defendant repeatedly argues that McCubbins
testified that he, and he alone, was responsible for the scheme to defraud
Medicare, 	she 	ignores 	critical 	testimony 	that 	belies 	that 	assertion.
McCubbins testified that he could not have signed the CGx test orders
52 	R. Doc. 80 at 29, 37-38.
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himself, that he relied on providers like the defendant to sign the orders, and
otherwise Medicare would not pay for the tests. 53
ii. 	Knowledge and Intent
The jury heard and saw copious evidence from which it could conclude
that Baker knowingly and with the requisite intent defrauded Medicare. The
jury 	heard 	audio 	recordings 	of 	Baker’s 	“consultations” 	with 	Medicare
beneficiaries, the result of which were CGx test orders. 54 The jury heard the
exceedingly brief, formulaic calls in which Baker elicited no information
from the patients but told them only she would send them a test kit and
provided instructions on how to complete the cheek swab and return the
kit. 55 In one instance Baker did not even speak to the beneficiary for whom
she ordered the CGx test. 56 They also saw the resulting notes and diagnosis
codes that Baker entered in connection with the orders, which included false
information.57 	They saw evidence that Baker entered into a collaborative
agreement with Dr. Prasad for him to be her supervising physician, and that
she never met Dr. Prasad, much less was supervised by him. Furthermore,
the government called an expert witness, Dr. Anthony Magliocco, to walk the
53 	Id. at 37-38.
54 	Government Exhibits 102, 106, 110, 114, 118, 122.
55 	Government Exhibits 102, 106, 110, 114, 118, 122.
56 	Government Exhibit 102.
57 	Government Exhibits 100-03, 104-06, 108-10, 112-14, 116-18, 120-22.
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jury through cancer genetic testing and the orders that Baker authorized. As
outlined in greater detail above, Dr. Magliocco testified that Baker (1)
ordered the CGx tests without being the treating physician for the Medicare
beneficiaries; (2) failed to obtain informed consent from the Medicare
beneficiaries before ordering the tests; (3) did not properly document the
medical records to support the CGx testing orders; (4) did not follow up with
the beneficiaries about the results of the CGx tests; and (5) did not review or
deliver the results of the CGx tests to the beneficiaries. 58 	Dr. Magliocco
testified that medical necessity for CGx testing could not be determined in a
matter of seconds. 59 Dr. Magliocco additionally testified that in his opinion,
none of the over 100 CGx tests ordered by Baker that he reviewed was
medically necessary. 60
The government additionally introduced evidence that Baker knew
what medical necessity meant, was familiar with telemedicine, billing, and
rules and regulations governing Medicare. Specifically, the jury saw Baker’s
Medicare enrollment documents and the attestations that she made to enroll,
and portions of books authored by Baker in which Baker demonstrated she
58 	R. Doc. 81 at 135-227.
59 	Id.
60 	Id.
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was knowledgeable about the requirement of medical necessity. 61 	And on
cross-examination Baker testified that she agreed to follow the laws, rules,
regulations, and program instructions governing Medicare. 62 	Baker even
admitted that she told a patient that she would not order these tests for her
own patients.63 And the jury heard an audio recording in which Baker told a
caller that she would send her own patients out to a specialist for CGx
testing. 64
The jury also heard and saw evidence that supports the reasonable
conclusion that Baker actively concealed her involvement with Bronson. The
government showed that Baker failed to notify the Louisiana State Board of
Nursing of her collaborative agreement with Dr. Anil Prasad (the Doctor who
purportedly supervised her Bronson work), despite notifying the Louisiana
State Board of Nursing of other collaborative agreements during the same
time period. 65 The government also showed that after a patient told her that
she had reported Baker to Medicare for fraud, Baker told Bronson to take her
name off of the prescription for that patient. 66 	And Special Agent Gagliano
61 	Government Exhibits 300, 304-06, 500-03.
62 	R. Doc. 82 at 150-52.
63 	Id. at 160-61.
64 	Government Exhibit 127.
65 	Government Exhibits 403, 700-03; R. Doc. 82 at 93-96.
66 	Government Exhibits 131, 133, 409.
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testified as to the false statements Baker made to law enforcement when
interviewed, including denying that she ever worked for Bronson or was paid
by Bronson. 67
Special Agent Gagliano 68 also testified as to the flow of money from
Medicare following the orders of the CGx testing. Specifically, Special Agent
Gagliano testified as follows: the lab running the CGx tests submitted the
bills to Medicare; said lab required a signed order from an ordering provider;
Medicare reimbursed the lab for the testing; and the reimbursements from
Medicare were then further dispersed to Bronson and from there to Baker
and other ordering providers.69
Taken together, the government presented sufficient evidence that,
aware of the laws, rules, and regulations that govern Medicare, Baker
ordered hundreds of costly, medically unnecessary CGx tests based on
erroneous and false information and following extraordinarily brief and
formulaic encounters with Medicare beneficiaries concerning whom she had
no history, asked no questions and provided no follow-up. The government’s
evidence also showed that in order to write prescriptions for Bronson, Baker
67 	R. Doc. 82 at 31-34.
68 	The Court notes that defendant brings forth a new objection to Special
Agent 	Gagliano’s 	testimony 	in 	the 	present 	motion. 	The 	Court
addresses this objection in section III.a.iv.
69 	R. Doc. 82 at 27-28, 61-65.
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needed a supervising physician, and she signed an agreement with a doctor
whom she never met, much less consulted with. 	And the government
presented evidence that Baker attempted to conceal her involvement with
Bronson. 	This evidence was certainly sufficient for a reasonable jury to
conclude that Baker acted with the requisite knowledge and intent.
Baker attempts to argue ignorance to counter this rational finding. The
government presented sufficient evidence for a rational juror to conclude
that Baker was not in fact “ignorant,” and the Fifth Circuit has already
rejected similar arguments of ignorance. 	See e.g., United States v. Umawa
Oke 	Imo, 	739 	F.3d 	226, 	237 	(5th 	Cir. 	2014) 	(rejecting 	defendant-
anesthesiologist’s argument that she was unaware of the health care fraud
scheme being run through a clinic where sufficient evidence showed that
false claims to Medicare and Medicaid were submitted under her billing
number and the services were not rendered to the patients); United States v.
Whitfield, 485 F. App’x 667, 670-72 (5th Cir. 2012) (rejecting defendant-
physician’s claim of ignorance of a Medicare fraud scheme where sufficient
evidence demonstrated that she had knowledge of Medicare requirements
and medical necessity, and had educational background and experience in
the healthcare industry). Purported ignorance provides no shield here.
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In her motion, defendant heavily relies upon United States v. Nora,
988 F.3d 823 (5th Cir. 2021), a case in which the Fifth Circuit reversed the
conviction of a home health agency’s office manager who was tried alongside
five co-defendants for his involvement in a health care fraud and kickback
scheme. But Nora does not help defendant. In Nora, the Fifth Circuit found
the government’s evidence insufficient to show that Nora, the office manager
who joined the home health agency “at age 22 with a high school degree,”
acted “willfully.” See id. But, in United States v. Barnes, 979 F.3d 283 (5th
Cir. 	2020), 	the 	Fifth 	Circuit 	affirmed 	the 	convictions 	of 	Nora’s 	co-
defendants: four physicians who referred patients to the home health agency
and the biller of the home health agency who would process Medicare filings.
Baker’s argument falls apart when considering the factual distinctions
between Nora, and her own case, and the similarities between Baker and the
defendants in Barnes. Baker was a nurse practitioner, not an office manager
like Nora. 	Her role, which included signing prescriptions for medically
unnecessary CGx testing, is substantially more akin to the role of the
physician 	defendant 	Shelton 	Barnes, 	who 	signed 	home 	healthcare
certificates for Medicare beneficiaries whom he had not met and was not
treating and who were ineligible for the care. Barnes, 979 F.3d at 297. The
government’s evidence showed that Baker herself enrolled with Medicare;
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that her Medicare enrollment required that she agree to rules, regulations,
and laws governing Medicare, including compliance with the Federal Anti-
Kickback statute; and that she, and other providers who could bill Medicare,
were necessary for the scheme. 	The government provided ample evidence
that Baker was ordering the CGx tests like the physicians in Barnes, not
merely collecting information or fielding calls as in Nora. 	Baker could not
be easily substituted as an office manager might. 	As McCubbins testified,
providers like Baker were needed to sign the prescriptions. She could not be
substituted out by an office manager. Despite Baker’s attempts to minimize
her role, the government offered ample evidence to establish that Baker was
essential to the scheme and had the requisite knowledge to have committed
health care fraud. Nora is simply inapposite.
Baker’s attack on the verdict on the basis that the government relied
on circumstantial evidence is likewise meritless. 	This argument finds no
footholds in the law. “Jurors are allowed to infer knowledge and intent from
conduct or context.” 	United States v. Martinez, 921 F.3d 452, 479 (5th Cir.
2019). 	Indeed, the Fifth Circuit has recognized that “[i]ntent to defraud is
typically proven with circumstantial evidence and inferences.” United States
v. Patel, 485 F. App’x 702, 708 (5th Cir. 2012). 	The voluminious evidence
described in detail in this order was sufficient for a reasonable juror to
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conclude that Baker had the requisite knowledge and intent to commit
healthcare fraud as charged in the six counts of the Indictment.
iii. 	Kickbacks
Baker 	additionally 	argues 	that 	the 	government 	failed 	to 	present
sufficient evidence of kickbacks. 	This too is countered by the record. 	The
jury saw the agreement between Baker and Bronson Medical in which she
was to be “paid $20.00 per network based consultation,” but was actually
paid 	per 	prescription 	ordered. 70 	The 	jury 	heard 	the 	incredibly 	brief
“consultations” themselves and heard from expert witness Dr. Magliocco
who opined that a provider could not have assessed the appropriateness of a
CGx test order in such periods of time. 71 	And the jury saw evidence that
Baker did not disclose the Bronson income during her 2019 bankruptcy
filing. 	This evidence is more than sufficient for a reasonable juror to
determine that Baker was not actually performing “consultations” and was
instead 	receiving 	kickbacks 	for 	her 	role 	in 	ordering 	the 	medically
unnecessary CGx tests. Cf. May, 131 F.4th at 644 (finding that a “reasonable
jury could have found [defendant] guilty beyond a reasonable doubt of
receiving kickbacks” when a witness testified that he paid defendant to sign
70 	Government Exhibit 400; R. Doc. 82 at 142-44.
71 	E.g., R. Doc. 81 at 217-18.
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prescriptions and there was corroboration of the payment through bank
records).
Baker’s argument revolving around the definition of “kickbacks” fails
too. First, as the government rightly points out, a Rule 29 motion is not an
opportunity to present a waived challenge. 	Cf. United States v. Hope, 487
F.3d 224, 227 (5th Cir. 2007) (“The only proper basis for a motion for
judgment of acquittal is a challenge to the sufficiency of the government’s
evidence.”). 	Even if Baker’s argument were appropriate here, it is wrong.
Courts may decline to adopt rigid definitions of “kickbacks.” See, e.g., United
States v. Charroux, 3 F.3d 827, 834-35 (5th Cir. 1993) (holding that a district
court did not abuse its discretion by permitting testimony on “kickbacks”
without adopting the defendant’s narrow proposed definition). 	Thus, even
had Baker timely objected to the term or asked the Court to use her proposed
definition during trial, the Court need not have accepted her narrow,
preferred definition. 	Moreover, the government’s charges here were not
based on a novel conception of “kickbacks.” 	Accordingly, the jury did not
need to be provided a specific definition as the term “has a common meaning
that [is] readily understood by the jury.” United States v. Gonzalez, 834 F.3d
1206, 1225 (11th Cir. 2016).
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In sum, the government presented enough evidence for a reasonable
jury to conclude that Baker was receiving kickbacks, the jury could have
readily understood “kickback” as the government used the term without
being provided a specific definition, and even had a definition been needed,
the Court need not have adopted a narrow one as defendant argues.
iv. 	Rule 704(b)
Despite failing to object to Special Agent Gagliano’s testimony at trial, 72
Baker 	now 	argues 	that 	Gagliano’s 	testimony 	violated 	Federal 	Rule 	of
Evidence 	704(b) 	because 	she 	provided 	opinion 	testimony 	regarding
defendant’s intent. Pretermitting discussion of the inaccuracy of defendant’s
recollection of Special Agent Gagliano’s testimony, the Court addresses the
inapplicability of Rule 704(b).
Federal Rule of Evidence 704(b) is an exception to the general rule
provided in 704(a). Federal Rule of Evidence 704 provides that:
(a) In General—Not Automatically Objectionable. An opinion is
not objectionable just because it embraces an ultimate issue.
(b) Exception. 	In a criminal case, an expert witness must not
state an opinion about whether the defendant did or did not have
a mental state or condition that constitutes an element of the
crime charged or of a defense. Those matters are for the trier of
fact alone.
72 	R. Doc. 82 at 22-96, 108-11.
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Fed. R. Evid. 704 (emphasis added). Critically, Baker ignores the simple fact
that Special Agent Gagliano was not an expert witness and that 704(b) is an
exception 	to 	704(a), 	which 	states 	clearly 	that 	“[a]n 	opinion 	is 	not
objectionable just because it embraces an ultimate issue.” 	Id. 	On these
simple grounds, the Court rejects defendant’s argument that this alleged
“error” furnishes a reason for acquittal. See United States v. Espino-Rangel,
242 F. App’x 219, 220 (explaining that Rule 704(b) “has no application”
when the witness was not called as an expert); United States v. Thomas, 294
F. App’x 124, 133 (“As [witness] was not tendered as an expert, the strictures
of Rule 704(b) are inapplicable.”); see also United States v. Diaz, 637 F.3d
592, 599 (5th Cir. 2011) (a lay witness “may give opinion testimony about a
defendant’s mental state”); United States v. Keys, 747 F. App’x 198, 207 (5th
Cir. 2018) (a lay witness may give an “explanation of the [witness’s] analysis
of facts which would tend to support a jury finding on the ultimate issue”).
Special Agent Gagliano, as a lay witness, was allowed to express an
opinion on an ultimate issue such as Baker’s mental state. 	See Keys, 747 F.
App’x at 207. 	Special Agent Gagliano’s testimony, which this Court again
notes went un-objected to during trial, was permissible.
Moreover, even if allowing the testimony were error, the error would
be harmless. 	In the context of permitting testimony, error is “harmless if
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there 	is 	sufficient 	evidence, 	aside 	from 	any 	potentially 	impermissible
testimony, from which the jury could find the Defendant[] guilty.” 	Espino-
Rangel, 242 F. App’x at 220 (citing United States v. Gutierrez-Farias, 294
F.3d 657, 663-64 (5th Cir. 2002)). 	As outlined in detail above, the
government presented voluminous evidence from which a reasonable jury
could conclude that Baker committed health care fraud. The government’s
case 	did 	not 	stand 	or 	fall 	on 	Special 	Agent 	Gagliano’s 	testimony.
Accordingly, even if it were error (it was not) to have allowed Special Agent
Gagliano to testify as she had, such error would be harmless.
c. Motion for New Trial
Here, error has not “infected the trial,” the evidence does not “heavily”
weigh against the verdict, and no miscarriage of justice has occurred.
Crittenden, 46 F.4th at 296. In her motion Baker does not provide separate
arguments for acquittal and new trial. Instead, she states that in the event
that this Court does not grant her request for acquittal, it should order a new
trial. As explained above, the government’s evidence is sufficient to sustain
the conviction. 	Even weighing the evidence and assessing the credibility
itself, the Court is satisfied that the government provided sufficient evidence
for the reasons explained in the preceding section. And, as explained above,
Baker has pointed to no error that has resulted in the miscarriage of justice.
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This is not an extraordinary case, and no extraordinary remedy is
warranted. 	Heeding the Fifth Circuit’s warning that motions for new trial
are disfavored, McRae, 795 F.3d at 478, and should be granted only with
“great caution,” United States v. O’Keefe, 128 F.3d 885, 898 (5th Cir. 1997),
the Court denies Baker’s motion for a new trial.
IV. 	CONCLUSION
For the foregoing reasons, the Court DENIES Baker’s motion for
judgment of acquittal and alternatively a new trial.
New Orleans, Louisiana, this _____ day of March, 2026.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
24th
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